Delhi District Court
S.C. No.46/09 vs (I) Azim Illahi @ Bhoora on 8 April, 2010
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE(NORTH):DELHI
1. S.C. No.46/09
State
Vs
(i) Azim Illahi @ Bhoora, S/o late Sh. Tasleem Illahi
R/o H. No. 1826, Gali No.26,
Chamra Paith
Zakir Colony, P.S. Usari Gate
Meerut (U.P)
(ii) Davender Sharma @ Johney, S/o Sh. Rajinder Sharma
R/o H. No. 80, Anand Nagar,
Inder Lok
Delhi.
(iii) Mohd. Nazim @ Rajan @ Guddu, S/o Sh. Shakir
R/o Village Maulat Tihahi, District Mavana
Meerut (U.P)
FIR NO: 61/03
PS: Sarai Rohilla
U/S 392/394/397/120B IPC
2 S. C. No.83/30.4.09
State
Vs
Azim Illahi @ Bhoora, S/o late Sh. Tasleem Illahi
R/o H. No. 1826, Gali No.26,
Chamra Paith
Zakir Colony, P.S. Usari Gate
Meerut (U.P)
FIR No. 345/03
PS: Sarai Rohilla
U/S 25/54/59 Arms Act
2
3 S.C. No.84/30.04.09
State
Vs
Davender Sharma @ Johney, S/o Sh. Rajinder Sharma
R/o H. No. 80, Anand Nagar,
Inder Lok
Delhi.
FIR No.348/03
PS : Sarai Rohilla
U/S 25/54/59 Arms Act
Arguments heard: 29.03.10
Judgment announced: 08.04.10
JUDGMENT
By this common judgment, I shall dispose of three cases pertaining to FIR No. 61/03 titled as " State V. Azim Illahi @ Bhura & Ors.", U/S 392/394/397/120B read with Section 34 IPC, FIR No. 345/03 titled as "State V. Azim Illahi", U/S 25 Arms Act and FIR No. 348/03, titled as "State V. Davender @ Johney" U/S 25 Arms Act PS Sarari Rohilla, as all the cases have arisen out of the same incident and witnesses are common in all these cases. 2 In case, pertaining to FIR No. 61/03 the charge was framed against accused Azim Illahi @ Bhoora and Davender Sharma @ Johney by Ld. Predecessor on 27.7.04 in respect of offence U/S 120B IPC. It was alleged against both the accused that they alongwith one Abad @ Choudhary (not arrested) and Nazim @ Rajan (PO) entered into conspiracy to rob Banwari Lal Sharma of cash amounting to Rs. 3 lacs and demand drafts amounting to Rs. 1.5 lacs alongwith some business papers and two wheeler scooter bearing No. DL 1SM5887. Both accused were also charged in respect of offence U/S 392 and 3 394 read with 120B IPC. It was alleged that on 21.2.02 at about 8.40 PM, Gali Haryana Dairywali, Near Heena Tailor, Opposite H. No.31, both accused in furtherance of their conspiracy with Davender Sharma @ Johney and Abad @ Choudhary (PO)robbed Banwari Lal Sharma of his scooter No. DL1SM5887, two bags containing amount of Rs. 3 lacs and demand drafts amounting to Rs.1.5 lacs alongwith some ledger/business paper on the point of country made pistol. They also inflicted injury on the head of Banwari Lal Sharma alongwith pistol.
3 Accused Azim Illahi @ Bhoora was also charged in respect of offence U/S 397 IPC. It was alleged that on the day of incident, mentioned above, he used a country made pistol in the commission of crime. 4 A separate charge in respect of offence U/S 25 Arms Act was framed by Ld. Predecessor on 27.7.04 against accused Azim Illahi @ Bhoora in FIR No.345/03 . It was alleged that on 30.09.03 at about 1.10 PM in front of Pawan Workshop, Road No.37, Anand Nagar, Delhi he was found in possession of one country made pistol with one loaded live cartridge and two live cartridges without any permit or licence.
5 A separate charge in respect of offence U/S 25 Arms Act was framed by Ld. Predecessor on 27.7.04 against accused Davender Sharma in FIR No.348/03. It was alleged that on 01.10.03 at about 7.50 PM, at first floor of H.No.80, Anand Nagar, Delhi, he got recovered a country made pistol alongwith two live cartridges, which he was possessing without any permit or licnece. 6 Later on, accused Mohd. Nazim @ Rajan @ Guddu was arrested and a separate charge was framed against him on 28.1.05 by Ld. Predecessor in FIR No. 61/03. It was alleged against accused Mohd. Nazim @ Rajan @ Guddu 4 that on or before 21.2.2003 at unknown time, he alongwith Azim Illahi @ Bhoora, Abad @ Choudhary (not arrested) and Davender Sharma @ Johney entered into a conspiracy to rob Banwari Lal Sharma of cash of Rs.3 lacs and demand drafts worth of Rs. 1.5 lacs alongwith business papers and scooter No. DL 1SM5887. 7 Charge was also framed against accused Mohd. Nazim @ Rajan @ Guddu U/S 392 and 394 read with Section 120B IPC with the allegations that on 21.2.03 at about 8.40 PM at Gali Haryana Derawali, Near Hina Tailor, Opposite H.No. 21 he in furtherance of conspiracy with accused Azim Illahi @ Bhoora, Abad @ Choudhary (not arrested) and Davender Sharma @ Johney robbed Banwari Lal Sharma of scooter bearing No.DL 1SM 5887, two bags containing cash amount of Rs.3 lacs and demand drafts amounting to Rs.1.5 lacs alongwith some ledger/business papers at the point of country made pistol and also inflicted blow on the head of Banwari Lal Sharma with country made pistol.
All the accused pleaded not guilty to the said charges and claimed trial.
8 During pendency of trial, all the three cases were clubbed by Ld. Predecessor on 27.7.04 on the request of ld. Addl. P.P, out of which case pertaining to FIR No. 61/03 was treated as main case. It was ordered by Ld. Predecessor that evidence recorded in main case i.e. FIR No.61/03 would be read in both cases i.e FIR No. 345/03 & FIR No. 348/03.
9 To prove its case, prosecution has examined 37 witnesses. They are Dr. Md. Swalesh (PW1), Ct. Md.Iqbal Khan(PW2), Ct. Anandvir Singh(PW3), H.C. Jai Singh(PW4), Sh. S. J. Mohan(PW5), Surender Kumar Bhardwaj(PW6), Banwari Lal Sharma(PW7), ASI Ajmer Singh(PW8), Ct. Anoop Singh(PW9), SI 5 Prem Dutt(PW10), Ct. Rajeev(PW11), Ct. Arvind Kumar(PW12), HC Jai Kumar (PW13), ASI Rajinder Singh (PW14), Ramesh Chand(PW15), N. Nagarajan (PW16), S.N. Bhattacharya (PW17), Mahesh Narain Sinha(PW18), Puran Prakash Arora(PW19), HC Satender Kumar(PW20), Vipin Kumar(PW21), L.R. Chauhan(PW22), Smt. Archana Sinha, Ld. M.M.Delhi(PW23), Sh. S.C. Modi (PW24), Sh. K.C. Varshney(PW25), Sh. Dinesh Kumar Patadia(PW26), Sh. Dilbag Singh(PW27), ASI Mohd. Razi(PW28), SI Arbind Pratap Singh(PW29), Sh. Mukesh Minz(PW30), HC Dalel Singh(PW31), Sh. Devi Das(PW32), Sh. S.J. Mohan(PW33), HC Yashpal Singh(PW34), ASI Ram Avtar(PW35), Sh. B. P. Singh(PW36) and SI Ramavtar(PW37).
10 Statements of accused U/S 313 Cr.P.C have been recorded separately wherein accused Davender Sharma @ Johney hs denied the allegations of prosecution. He has submitted that his signatures were obtained by the IO on blank papers, which were, later on, converted as disclosure statements. Nothing was recovered from him or at his instance. The country made pistol and cartridges have been planted upon him by the police. He has further submitted that the motor cycle belongs to one Raj Kumar Garg, who got the motorcycle released on superdari. He (accused Davender) was arrested from his residence on 30.9.03 at 8.30 AM. It is a false case against him. There was some property dispute between his family and the family of Banwari Lal Sharma. However, the dispute has been settled between the parties. He never met any Govind Goel or his associates. No transaction took place between him and Govind Goel. The police collided with Govind Goel and let him scott free. 11 Accused Azim Illahi has also denied the allegations of prosecution. He has denied of having made the disclosure statement or supplementary 6 statement to the police. No recovery was effected from his possession. He was lifted by the IO on 29.09.03 from Etawa (UP). He has been falsely implicated in this case.
12 Accused Nazim @ Rajan has stated that he was arrested in this case on the production warrants. He was produced in unmuffled face before the court of Ld. M. M.. His photographs were taken by the IO. He was shown to the witness before TIP proceedings. It is a false case against him. 13 In this case accused Abad @ Choudhary was not arrested by the police and was declared P.O. 14 Accused Azim Illahi has examined two witnesses in his defence. They are Nadeem Illahi (DW1) and Kaleem Illahi (DW2).
15 I have heard arguments from ld. counsel for accused and Ld. Addl. P.P for State. I have also perused the case file.
16 In this case, out of 37 witnesses, PW7 Banwari Lal Sharma is the star witness, being the complainant of this case. After going through the testimony of PW7, I am of the considered view that it is not proved on record as to in what capacity the complainant Banwari Lal Sharma was carrying the amount of Rs. 3 lacs and demand drafts of Rs.1.5 lacs alongwith business paper and scooter. 17 PW7 Banwari Lal Sharma has deposed in examinationinchief that on 21.2.03, at about 8.35 P.M he was going after closing his shop. He reached in front of Heena tailor Shop, Haryana Dairywali Gali. He was riding on a two wheeler scooter bearing No. DL1SM 5887, Make Bajaj Chetak. He had two bags. One bag was of red colour, in which amount of Rs.3 lacs and demand drafts of Rs. 1.5 lacs, alongwith his personal diary and visiting cards of firm were 7 kept. Another bag of brownish colour, was containing the ledgers and some documents pertaining to shop. In another pocket of the same bag some more papers pertaining to his shop were kept. Two bags were hanging with the handle round the head light. Two persons came in front of him and told him to get down from the scooter. He asked as to what was the matter. He was told by the persons to get down from the scooter. In the meantime another person came from the back side of his scooter and stopped his scooter. One of the persons, who met him first gave a butt blow on his head and asked to leave the scooter . The person, who was on his back side, told him to leave the scooter or he would shoot him. Those two persons took away his scooter with his above said belongings and the third boy also followed them on his scooter. 18 In crossexamination PW7 Banwari Lal Sharma has deposed that he is married. He has two sons. Their names are Tanuj Sharma and Anuj Sharma. Nitin is the name of his nephew. He (nephew) is son of his brother, namely, Nirdosh Sharma. Nitin Footwear is a proprietorship firm. His elder brother namely Shyam Sunder Sharma is the proprietor of the firm. He (PW7)is an employee of this firm and is getting the salary of Rs.5000/ per month. At the time of incident he was getting salary of Rs.4,000/ per month. There was one more employee, besides him, in the abovesaid firm but he does not remember his name. He has further deposed that he does not remember the total amount collected by him on the date of incident. There was a ledger, maintained by the firm and the amount, received on the particular day, is mentioned in that ledger. The ledger is filled up by the accountant. At the time of incident, the accountant of the firm was Vijender Sharma. On the 8 day of incident, the ledger was filled up by Vijender Sharma. He does not know the number of persons from whom the payments were received on the day of incident. He can tell the same after going through the ledger. The payment was not received in the presence of the helper or the accountant. The helper of the firm was interrogated by the police in his presence. However, the accountant was not interrogated by the police in his presence. He does not know whether he was interrogated by the police or not. He does not remember whether Haryana Dairy was opened at the time of incident or not as the said dairy was at the end of the street i.e about 20 paces from the place of incident.
19 PW8, ASI Ajmer Singh, who is the initial IO of the case, has deposed that on 24.2.2003 complainant Banwari Lal Sharma came to the police post and produced an application, wherein he had given the details of the robbed demand drafts, cash amount and other articles. The said application is Ex.PW7/C. He took that application into possession vide memo Ex.PW7/B. In cross examination, PW8 has deposed that he did not investigate anything on the basis of Ex.PW7/C. However, he tried to trace out the drafts. He (PW8) admitted that no such drafts were recovered by him. He has admitted that there is mention of 11 drafts in Ex.PW7/C. He did not investigate as to in whose favour the 11 drafts, mentioned in Ex.PW7/C, were issued. He did not move any applications before the concerned Bank managers for stopping the payments of the drafts. PW8 has further deposed that complainant had told him that he is the owner of Nitin Footwear. He did not make any inquiry whether complainant was a partner, director or proprietor 9 in Nitin Footwear. He visited the premises of Nitin Footwear on the next day of the incident i.e 22.2.2003. He cannot tell as to how many persons met him at Nitin Footwear on that day. He inquired the servants employed in Nitin Foorwear.PW8 has further deposed that he did not check the account of Nitin Footwear. He cannot tell whether the accountant of Nitin Footwear was present in the shop on the date of incident or not. He had not asked for any documentary proof from Banwari Lal to know his status in the Nitin Footwear. However, he inquired about the status of Banwari Lal in Nitin Foortwear from the neighbours. He did not inquire from the complainant as to why he had named the firm as Nitin Footwear. 20 PW37 SI Ram Avtar, who is the subsequent IO of case has deposed that in the month of August, 2003, the investigation of the case was assigned to him. After assignment of the case, he came to know that certain bank drafts were involved in the case. Complainant had also given a list of stolen drafts totalling 11 in number. He has admitted that he did not make any investigation in respect of the drafts during the period of 2.8.03 till 30.09.2003. He did not make any investigation in whose favour the said drafts were issued despite the fact, that list was with him. He did not make any inquiry to know, the status of the drafts, issued by the bank. He did not inquire whether said drafts were encashed or not.. He did not write any letter to the concerned bank regarding the stop payment of said drafts. He did not give any instructions to complainant Banwari Lal Sharma to take steps for stopping the payment of the drafts. In crossexamination by ld. counsel for accused Azim Illahi, PW37 has deposed that proprietor of Nitin Footwear is one Mr. 10 Shyam, elder brother of the complainant. This fact came to his knowledge from Banwari Lal Sharma. He did not investigate whether Banwari Lal Sharma was employee or partner of the firm M/s Nitin Footwear. He did not investigate that M/s Nitin Footwear is a joint family firm. He did not investigate the employees or the real brother of the complainant. He demanded the account books from the complainant but he told him that all the account books pertaining to M/s Nitin Footwear had been stolen on 21.2.2003. He did not investigate the aspect of providing the details of the drafts by the complainant to the investigate agency. He denied that Banwari Lal Sharma and his brother with intention to usurp or misappropriate the amount of Nitin Footwear fabrciated the incident dated 21.2.03. He further denied that this fact was also in the knowledge of ASI Ajmer Singh, who took him (PW37)in his confidence and asked him not to disclose the fact of misappropriation by Banwari Lal.
21 In crossexamination by ld. counsel for accused Davender Sharma @ Johney PW37 has admitted that no recovery was effected from accused Davender Sharma on 2.10.03. He has further admitted that no draft was recovered from the possession of accused Davender Sharma. He does not have any documentary proof to show that money was transferred in the name of Davender Sharma. He does not have any documentary proof to the effect that accused Davender Sharma got encashed the drafts. He had not taken the details of bank account of Davender Sharma. He has admitted that all the drafts i.e Ex.PW37/E, Ex.PW22/C, Ex.PW21/A, Ex.PW32A, Ex.PW37/G and Ex.PW37/H have been encashed by one Govind Goel in his firms Shiva 11 Enterprises, Shriram Enterprises and Ritu Enterprises. He has admitted that all the money relating to the aforesaid drafts have been transferred in the account of the aforesaid three firms. Govind Goel was operating the said firms and was the whole sole incharge of the said firms. He has admitted that he has not arrested Govind Goel in this case. During investigation, he came to know about the residential address of Govind Goel as well as the address of three firms. Govind Goel met him during the investigation of this case. He did not cite Govind Goel as a witness in this case . He denied that he in collusion with Govind Goel did not arrest him, although, he was the receiver of stolen property and implicated the accused Davender Sharma to save the real culprits, especially, Govind Goel and others. He did not record the statement of Hari Om and Monu as witnesses. He denied that accused Davender Sharma was not known to Govind Goel, Hari Om or Monu. He further denied that accused Davender Sharma never met Govind Goel, Hari Om and Monu in connection with the drafts in question. He further denied that Davender never got encashed any drafts, whatsoever, through Govind Goel.
22 From the testimonies of these witnesses i.e PW7, PW8 and PW37, it is not proved on record whether Banwari Lal Sharma was an employee in M/s Nitin Footwear or he was a proprietor of the firm. It is also not proved on record as to how much amount he was carrying on the date of incident as PW7 does not remember the total amount, collected by him, on the day of incident. It is significant to note that ledger maintained by the accountant of the firm M/s Nitin Footwear has not been produced in the court to show the robbed amount of Rs.3 12 lacs. Prosecution has also not been able to prove on record as to, who were the persons, in whose favour, the alleged 11 demand drafts, were issued by the parties. Prosecution has not placed on record any demand draft, which has been issued in the name of the 'Nitin Footwear'. None of the demand drafts allegedly collected by the IO of the case, during investigation, has been issued in favour of either Banwari Lal Shrma or the firm' Nitin Footwear'. Both the IOs of the case i.e PW8 & PW37 have admitted that they did not carry out any investigation regarding the fact as to in whose favour the demand drafts were issued. It is worth noting that PW7 Banwari Lal Sharma had given the details of the 11 demand drafts to the initial IO ASI Ajmer Singh on 24.2.03, i.e after three days of the incident. Despite the availability of list, I.O did not carry out any investigation to bring on record the truth.
23 It is further worth noting that no efforts were made either by the complainant or by the IOs to intimate the bank to stop payment of the amount pertaining to 11 demand drafts, allegedly robbed by the accused. All these facts create a doubt in the mind of court about the alleged robbery of cash amount and demand drafts, by the accused on the relevant date.
24 It is further significant to note that as per the testimony of PW3 Ct. Anandvir Singh, a DD No.40 Ex.PW3/A was received through wireless message, from control room, on 21.2.03, when he was posted at Police Post Inder Lok, as DD writer. The DD related to robbery on the point of revolver in the area of Inder Lok, Anand Vihar . He has deposed that information was reduced into writing in the daily diary and the copy of the daily diary was handed over to constable Bhoop Singh. He (PW3) again deposed that DD was marked to ASI Ajmer 13 Singh. But perusal of DD Ex.PW3/A shows that lady constable Nirmala gave the information that "79 Anand Nagar, Inderlok scooter 5887 par do ladke swar hai joki H. No. 71 se aage apna scooter mere scooter ke age laga diaya or revolver dika kar 3 lkh rupee cheen kar Tri Nagar ki taraf bhag gaye. Harsab aamad itla wireless darj rojnamcha ki nakal alag karke hawle constable Anoop Singh No.1755/N ki gayee jo asal me HC Dalel Singh No.106/N bhijwai ja rahi hai jo munashif karyawahi amal me layge". In other words, as per DD Ex.PW3/A complainant was not on scooter No. 5877 but two boys were riding the scooter 5877. Moreover, as per Ex.PW3/A, the DD was handed over to Ct. Anoop Singh and not to Bhoop Singh as stated by the PW3. It is worth noting that in DD Ex.PW3/A there is no mention of marking the DD to ASI Ajmer Singh. However, the investigation has been carried out, by ASI Ajmer Singh.
25 Besides this, in case PW7 Banwari Lal has deposed that he went to Dr. Mohd. Sawale as he was bleeding from his head and got first aid. In crossexamination by ld. counsel for accused Azim Illahi, PW7 has deposed that he went to doctor of his own after about 15 minutes of the incident. He narrated the incident to doctor. He does not know whether doctor gave him two or three stitches but he was given stitches on his head. He further deposed that he knew the doctor as he used to visit him for minor ailments. He remained in the clinic for about 1/1.15 hours. The doctor supplied him the treatment card with medical prescription slip. He did not gave the prescription slip to the police. But PW1 Dr. Mohd. Salvesh has deposed in crossexamination by ld. counsel for accused Davender 14 Sharma that Banwari Lal Sharma is his regular patient. He did not disclose him that he sustained injury on his head on 21.2.03. He (PW1) did not ask regarding the cause of injury. He has further deposed that injury was minor. No MLC was prepared by him. It is worth noting that PW7 Banwari Lal Sharma did not get any treatment from the Govt. hospital, despite the fact, that he was robbed of the amount of Rs.3 lacs and demand drafts of Rs.1.5 lacs and was given butt blow by the accused on his head. No explanation has been furnished by him for not getting the treatment from Govt. hospital. It is also significant to note that PW8 ASI Ajmer Singh, who is the initial IO of the case also did not make any attempt to get the complainant medically examined from Govt. hospital and get prepared the MLC to know the truth of the case, despite the fact, that Banwari Lal Sharma was available at the spot. 26 Moreover, arrest of accused Azim Illahi in this case is not free from doubt. PW7 Banwari Lal Sharma has deposed that on 30.09.03 when he was going to his shop, in his Zen car, bearing No. HR 26G 2650 the car engine was not working properly. He went to a workshop, of Pawan Motors, at road No.37, Anand Nagar, Delhi, where he saw that accused Mohd. Azim Illahi was sitting on a takht. He identified him to be one of the assailants. He made a telephone call to the PS Sarai Rohilla. The police reached at the spot at about 1.10 PM. On his pointing out accused Azim Illahi was arrested by the police. He told his name as Azim Illahi. In crossexamination by ld. counsel for accused Azim Illahi PW7 has deposed that he does not know whether accused Azim Illahi was sitting by crossing his legs (palti) on the bench or with his feet on the ground. But PW11 Ct. Rajeev has deposed that when accused Azim Illahi 15 was arrested, he was sitting on the takht in the manner in which one sits in the chair. But, PW12 Ct. Arvind has deposed differently and has gone to the extent of saying that he does not remember when Azim Illahi was arrested by the IO but he was arrested by the IO prior to 1.10.03. He has further deposed that he does not know on which article Azim Illahi was sitting. It is worth noting that PW12 Ct. Arbind is the member of the raiding party by whom Azim Illahi was arrested. He does not remember the day on which accused Azim Illahi was arrested. He has deposed that Azim Illahi was arrested from Inderlok side Anand Nagar but he is not sure about the proper location of the place of arrest of accused Azim Illahi. 27 From the testimony of material witnesses it is not clear as to who apprehended accused Azim Illahi first. PW7 Banwari Lal Sharma has deposed that out of the four officials two offcials had apprehended accused Azim Illahi. But PW8 ASI Ajmer Singh has deposed that first of all accusedBAzim Illahi was caught by SI Ram Avtar. At that time they(members of raiding party)were at the distance of about 56 paces from SI Ram Avtar and the accused.
28 From the testimony of material witnesses it is not proved on record as to whether accused Azim Illahi tried to run from the spot after seeing the police party. PW7 Banwari Lal Sharma has deposed that Azim made futile efforts to get himself freed when he was apprehended by the police officials. But PW37 SI Ram Avtar has deposed that accused Azim Illahi did not try to flee from the spot.
29 From the testimonies of material witnesses it is not proved on record as to the cloth in which Azim Illahi was possessing the cartridges. 16 PW11 Ct. Rajeev has deposed that accused Azim Illahi was arrested vide memo Ex.PW8/C. His personal search was conducted vide memo Ex.PW8/D. SI Ram Avtar has taken the formal search of the accused and from the left side dub of the wearing pant of accused Azim Illahi a desi katta and two live cartridges were recovered. In other words, katta and two live cartridges were recovered from the left side dub of pant worn by accused Azim Illahi. But as per the testimony of PW37 SI Ram Avtar on the search of the accused Azim two live rounds were also recovered from the front pocket of the shirt. 30 From the testimonies of material witnesses it is not proved on record as to where the written work i.e recording the statement of PW7 was done. PW7 has deposed that he does not remember the exact place where his first statement was recorded. However, it was recorded by sitting on the stairs in front of a house. At that time the door of that house was closed. The source of light was the bulb outside the shop of Heena Tailor and the head light of the gypsy. PW8 ASI Ajmer Singh has deposed that the statement of complainant was recorded while sitting on the chabutra in front of the shop of Heena Tailor. There was street light. The electricity pillar was situated about 23 paces from the Heena Tailor shop.
31 From the testimonies of PWs, examined by the prosecution, it is not proved on record whether complainant Banwari Lal Sharma was present or not at the time of arrest of accused Davender Sharma by the IO SI Ram Avtar. PW7 has deposed that on 1.10.03 when he came to his home he saw that police officials were present at his house alongwith accused Mohd. Azim Illahi and Davender Sharma. Police told him that Davender Sharma 17 was arrested and a katta has been recovered from him. He was asked to sign the paper. He had seen Ex.PW7/H but does not know the contents of the same. He had signed that papers on the asking of the police. In other words, PW7 was not present at the time of arrest of accused Davender Sharma and police himself had brought the accused Davender Sharma to his house on 1.10.03 alongwith accused Azim Illahi and told him that a katta has been recovered from accused Davender Sharma. But ASI Ajmer Singh(PW8) has deposed that on 1.10.03, he alongwith SI Ram Avtar, Ct. Rajiv, Ct. Arvind and accused Azim Illahi went to Road No.37, in front of Pawan Motor, where accused Azim Illahi pointed out accused Davender Sharma, who was standing in front of Pawan Motor. On his pointing out, accused Davender Sharma was arrested by them. His disclosure statement Ex.PW8/G was recorded and he was arrested vide memo Ex.PW8/H. In pursuance to the disclosure statement of accused Davender Sharma, the police party went to H. No.80, Anand Nagar, Delhi. In the meanwhile, complainant Banwari Lal also reached there. The complainant was informed about the further facts of the case. It is worth noting that recovery memo Ex.PW7/H is bearing the signatures of Banwari Lal Sharma. 32 It is further worth noting that in this case PW7 has not identified the accused Davender Sharma in court. He has deposed that he can identify all the accused persons, if shown to him. He has pointed out towards accused Azim Illahi has stated that he was the boy, who came on another scooter from behind and stopped his scooter at his back side. He has also pointed out towards accused Mohd. Nazim and has stated that he is the person, who had given a butt blow on his head and had taken away his belongings alongwith 18 another accused, who is not present in the court. It is worth noting that on 20.1.06, when he gave this statement accused Davender Sharma was present in court. Moreover, in crossexamination by ld. counsel for accused Davender Sharma, PW7 has admitted that Davender Sharma belongs to a respectable family. He did not hear any complaint against accused Davender Sharma. No recovery has been effected from accused Davender Sharma, in his presence. Davender Sharma is his next to next door neighbour. All these facts show that Davender Sharma was not one of the accused, who has robbed the complainant of cash amount and demand drafts. If Davender Sharma had robbed the complainant, PW7 would have certainly deposed his name, in his complaint Ex.PW7/A, on the basis of which FIR No. 61/03 has been registered. 33 Further, in the present case, arrest of accused Davender Sharma also is not free from doubts. PW8 ASI Ajmer Singh has deposed that accused Davender was residing in joint family's house. He admitted that when he reached the house of accused Davender Sharma, 45 family members of Davender Sharma confronted them. But PW12 Ct. Arvind Kumar has deposed that he cannot tell, whether the house, where accused Davender was residing was a joint family house or he was living there alone. He cannot tell whether chacha or tau or other family members of accused Davender Sharma were present in the house or not.
34 From the testimonies of PWs it is not proved on record as to where the writing work was done after the arrest of accused Davender Sharma. PW12 Ct. Anand has deposed that he does not remember at which place of the house of accused Davender, the writing work was done. He 19 cannot tell whether writing work was done in the room or outside the house. But PW8 ASI Ajmer Singh has deposed that all the writing work was done in front of the house of Davender Sharma while sitting on the chair. The chair was taken from the house of Davender Sharma but he cannot tell the number of the chairs.
35 From the evidence on record it is not proved as to when complainant Banwari Lal Sharma has seen the accused Nazim for the first time. PW7 has deposed that on 24.10.04 when he was going to purchase fruit he saw that accused Nazim with ASI Ajmer Singh and one constable were getting down from a TSR. He told ASI Ajmer Singh that accused Mohd. Nazim is the same person, who had looted him and given a butt blow with the katta on his head on 21.2.03. In other words, PW7 had seen the accused Nazim for the first time on 24.10.04. However, in crossexamination by ld. counsel for accused Nazim, PW7 has deposed that on 18.10.04 he was informed by the IO in the morning about the arrest of accused Nazim. He denied that he had come to the court, on that day, when accused Nazim was arrested in court. He further denied that he was shown the photograph of accused Nazim by the police. But PW8 SI Ajmer Singh has deposed that on 12.10.04 he received information that accused Nazim @ Rajan, who was P.O in case FIR No.61/03 was in custody at Tihar Jail. He got issued production warrants against accused Nazim, Mohd. Nazim was produced in the court of Ld. M. M. on 14.10.04. Accused Nazim was interrogated with the permission of court and his disclosure statement Ex.PW8/M was recorded by him. He was arrested vide memo Ex.PW8/O. He moved an application Ex.PW8/Q for TIP of accused Nazim and it 20 was fixed for 18.10.03. He reached Tihar jail alongwith complainant on 18.10.03 but TIP was not conducted as accused Nazim denied to participate in TIP proceedings. In crossexamination by ld. counsel for accused Mohd. Nazim, PW8 has deposed that complainant was produced before ld. M.M at the time of TIP of Nazim. He has further admitted that after producing the complainant before the Magistrate he was asked to sit outside the court of ld. Magistrate. Accused Nazim was produced in the court after making the complainant to sit outside the court of ld. M. M. He does not know whether accused Mohd. Nazim was produced before the ld. M.M in unmuffled face as he was sent outside by the ld. M.M. In other words, as per the testimony of PW8, complainant had seen the accused Nazim when he was produced before ld. M.M for TIP. It is worth noting that an application for TIP Ex.PW8/R was moved by the IO on 15.10.03. Since accused Nazim was seen by the complainant outside the court of ld. M.M, I am of the considered view that the fact of refusal by Nazim to take part in the TIP will not go against him. It is worth noting that Nazim has been arrested in this case on the disclsoure statement of accused. Nothing has been recovered from his possession. 36 It is worth noting that in the present case, prosecution has failed to duly prove the sanction U/S 39 Arms Act. The prosecution did not examine Ms. Garima Bhatnagar, the then DCP to prove the sanction, for the prosecution of accused Azim Illahi and Davender. Prosecution has examined PW34 HC Yashpal Singh. He has deposed that the sanction orders Ex.PW34/A and Ex.PW34/B are bearing the signatures of Ms. Garima Bhatnagar, the then DCP North. In crossexamination by ld. counsel for accused Azim Illahi and Davender 21 Sharma, PW34 has admitted that the sanction orders Ex.PW34/A and Ex.PW34/B were not passed during his tenure in the office. He has further deposed that he did not work with Ms. Garima Bhatnagar at any point of time. He did not see her writing and signing. In view of these facts, I am of the considered view that sanction orders Ex.PW34/A & Ex.PW34/B are not duly proved by the prosecution.
37 Further, in this case, PW37 SI Ram Avtar has deposed that accused Davender had purchased a motor cycle from the robbed amount but that fact has not been proved on record. PW8 SI Ajmer Singh has deposed that on 01.10.03 he alongwith SI Ram Avtar, Ct. Arvind, Ct. Rajiv and accused Azim Illahi and Davender Sharma went to the house of accused Davender Sharma, from where one motor cycle No.DL4SAF 2602 was found parked in front of the house of accused Davender Sharma. The same was seized vide memo Ex.PW7/A but PW37 SI Ram Avtar has deposed that registered owner of the motor cycle No. DL4SAF 2602 is one Raj Kumar Garg. He has admitted that Raj Kumar got the motor cycle released on superdari from the court. He has further deposed that he did not collect any document to the effect that vehicle in question was purchased by accused Davender Sharma. It is worth noting that PW27 Dilbag SIngh has also not supported the prosecution story in this regard. He has deposed that he knows the accused Davender Sharma as he was reisidng in the back gali of his office. Accused Davender used to visit his office. He does not know anything about this case. This witness has been crossexamined by Ld. Addl. P.P, wherein he has deposed that he does not remember whether he gave any statement to the police or not. He did not state to the police that accused 22 Davender wanted to purchase a second hand motorcycle or that Raj Kumar Garg was having motorcycle, who wanted to sell the same. He did not say to the police that he managed a motorcycle for Rs.23,000/ from Raj Kumar Garg and the same was sold to Davender Sharma and accused Davender paid Rs.10,000/ out of the total amount. He did not state to the police that document of motor cycle were not transferred due to nonpayment of remaining amount and the motorcycle remained in the name of Raj Kumar.
38 It is further worth noting that in this case it is not proved on record as to who has deposited or presented the demand drafts to the concerned bank. PW16 Sh. N. Nagarajan, Manager, State Bank of India, has deposed in cross examination that he cannot say, who had deposited demand draftsA1 to A3. He cannot say, if demand drafts A1 to A3 had been submitted by Umesh Kumar in the concerned bank, from where his the bank received them for clearance. Similarly, Pw17 SH. S.N. Bhattacharya, Branch Manager, UTI Bank has also deposed that he cannot say that the demand draft B1, which has been issued in the name of Ramesh Kumar, has been submitted by him in the concerned bank, from where his bank had received the demand drafts for clearance. He has further deposed that he cannot say, who had deposited these drafts in the concerned banks. It is significant to note that as per document Ex.PW6/A the seven demand drafts have been got encashed in the account of Shri Ram Enterprises and Ritu Enterprises, which are owned by Deepti Garg and Govind Goel.
39 In this case, IO did not make any efforts to arrest Govind Goel despite the availability of Govind Goel. It is not the case of IO that he was not available because he had personally talked to him. However, he did not arrest 23 him as receiver of the stolen/robbed property. IO did not make any effort to investigate as to how the demand drafts came into possession of Govind Goel whether it was accused Davender Sharma or somebodyelse through whom he received the demand drafts for encashment.
40 It is worth noting that accused Azim Illahi has examined DW1 Sh. Nadeem Illahi in his defence. Sh. Nadeem Illahi is the brother of accused Azim Illahi. He has deposed that on 29.09.03 at about 4.00 PM, 45 police officials in plain clothes entered his house. They lifted his brothers Kalim Illahi @ Guddu and Azim Illahi. The persons told them that they were taking them to Meerut. At about 11.00 AM he made four telegrams; (i)to Chief Minister UP, the certified copy of which is Ex.DW1/A. (ii)to DGO, Lucknow, certified copy of which is Ex.DW1/B.(iii)to DIG, Kanpur Range, certified copy of which is Ex.DW1/C and
(iv)to IG Police, Lucknow, certified copy of which is Ex.DW1/D. He paid for all the telegrams. The copy of receipt of payment is Ex.DW1/E. After two days one of his brother Kalim Illahi @ Guddu was released by the police but Azim Illahi was falsely implicated by the police officials of Delhi Police. In crossexamination by Ld. Addl. P.P for State PW1 has deposed that on 21.2.03 his brother was at his home. He admitted that he did not make any complaint, till date, to the higher police officials, in hierarchy, after implication of his brother in the present case. 41 It is significant to note that four telegrams, certified copy of which are Ex.DW1/A to Ex.DW1/D are not disputed by the prosecution. 42 In view of the above referred infirmities and material contradictions , I am of the considered view that prosecution has miserably failed to prove its case against the accused persons beyond reasonable doubt. Accordingly, all accused are acquitted of the offences, they were charged with. 24 43 In these cases, accused Azim Illahi, Davender Sharma and Nazim are on bail. Their personal bonds and surety bonds are cancelled. Their respective sureties are discharged. Files be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON (SMT. BIMLA KUMARI) 08.04.2010 Addl.Sessions Judge(North):Delhi